Fluid Boundaries
By John Dean Davis
In 1989, John A. Rapanos dumped a large amount of sand into a swampy area on his farmland near Lake Huron. Five years later, federal agents brought criminal charges and a civil suit against him for his destruction of these wetlands, and tried to throw him in prison. Even after being sentenced to community service and accumulating $13 million in fines, Rapanos held not the slightest remorse for his wetland destruction. He refused the government’s censure entirely, initiating a legal battle that would last over a decade. Rapanos had backfilled the wetlands on three parcels of land he owned, intending to build a shopping mall. Knowing full well federal law required permits, Rapanos bulldozed the wetlands without making any attempt to get permission to do so. Federal regulators said Rapanos had brought so much wrath upon himself because he had knowingly polluted the waters of the United States, a federal crime. In an escalating series of court cases that followed, Rapanos and his attorneys argued that the notion was spurious: his land was well over ten miles from Lake Huron, the closest body of water that was understandably navigable and fell under the authority of the federal government. He had a point: historically and customarily in the United States, federal authority extends to waters that are navigable, i.e., they are commercial waterways too important to the state’s economic interests to be left untended. Rapanos, and several justices, as it turns out, found it curious that the two main authorities responsible for so much regulatory ire, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, would be so interested in muddy fields located miles away from the high water mark of Lake Huron. (1)
What follows is an account of a modern border dispute. Rapanos believed the Corps of Engineers met the limit of their authority at the shore of Lake Huron, or at the banks of any waterway that freighters and other commercial vessels find their way down. However, the Corps of Engineers have their own definition of “waters of the United States,” a technical and legal term honed over two centuries of working in the country’s rivers and harbours. “The waters of the United States” extend from the spacious lower rivers to the feeding tributaries, and branch off further into smaller creeks and streams, before expanding out into neighbouring wetlands. Anything in a body of water that could flow downward and materially degrade the waterways is, according to the Corps, within the “waters of the United States.” The resulting strife over these competing definitions, in the courts and newspapers, and over thousands of pages of government regulations and government-sponsored studies, neither made this clearer to the public, nor promoted any easily understood definition of the limits of the “waters of the United States.”
Rapanos’s surname has become ubiquitous in discussions of rivers and the limits of federal power. Ironically, for a man so opposed to it, his name was and is widely cited alongside the specter of “federal overreach.” Rapanos v. United States, No. 04-1034, a 2006 U.S. Supreme Court decision, remains the legal grist that scholars and rule-makers in federal agencies have puzzled over for the past ten years. Though the decision gave little to either John Rapanos or federal regulators in terms of clarity or closure, Rapanos’s name is now scattered throughout all of the literature of the larger context of disputes over federal authority in wetlands. The case touched on an old and consistent divide in theories of American politics. Right-wing parties standing for property rights and guarded against perceived federal tampering coalesced around Rapanos, casting much-maligned federal environmental agencies in familiar straw-man roles of favouring migratory birds over humans. John Rapanos retained a specialized legal team, whose attorneys bundled similar wetland-destruction cases and led the legal appeals all the way to the U.S. Supreme Court, peppering the conservative press with sympathetic news editorials before the public hearing. (2)
The Supreme Court heard John Rapanos’s appeal in February 2006. In addition, the court heard another, similar case, Carabell v. United States Army Corps of Engineers. Carabell’s case was similar to that of Rapanos in that they both involved filling wetlands for suburban development, except in Carabell’s case, the developer had applied for a permit and was denied. Carabell an his wife had built a supposedly impervious berm between the residential development and the depression in the land that drained into the navigable river nearby, which their lawyers argued severed any “hydrological connection” to that river, and therefore any legal liability under the Clean Water Act. (3) According to the New York Times reporter present at the case, exchanges between the lawyers and the justices were testy and oral arguments revealed no clear physical or legal principle on which to base a decision. Rapanos’s lawyer stated that the Army had overstepped its bounds, in defiance of Congress, which “did not intend to regulate the entire tributary system” extending up far-flung valleys and hollows. Justice Souter pointed to the apparent difficulty of the case, musing on exactly how far upstream, then, one has to go to legally dump pollutants. Chief Justice Roberts, still new to the court at the time, asked about the theoretical journey of one drop of water down the river system. Justice Scalia, questioning the government solicitor, turned the argument from abstract musings on drops of water and the nature of tributaries. He appealed to common sense definition, a geographical distinction one might find in a grade-school textbook, and ridiculed the government’s categorization that “a storm drain, even when not filled with water, is a tributary.” Scalia’s hydrological cartoon was meant to satirize the inflated language employed by the Army and other federal agencies: “I suggest it’s very absurd to call that ‘waters of the United States.’ It’s a drainage ditch.” (4)
Rivers and wetlands along the Carolina coast. (Image by Author).
The Waters of the United States
Though railroads were ascendant, in the years before and after the American Civil War, the rivers were choked with boat traffic of all kinds. The same applies to estuaries and harbours: ferries, local commercial traffic, and interoceanic vessels moved through these spaces at all times, day or night. Some of the vessels were steam-powered, others relied on wind and therefore had limited mobility. Space was at a premium. Maritime traffic held to channels, both natural and artificial, where the water was deep enough to accommodate the drafts of increasingly large and laden ships. There also was the problem of wharfage, with competing shipping companies extending docks and wharves further out into the harbour or channel to keep enough deep water alongside their own docks. By the late 19th century, most major east coast city governments enacted harbour ordinances, which constrained would-be wharf builders from encroaching too far into the navigable channel and providing a mechanism to legally dismantle structures that interfered with common rights to navigation. The commissions that drew these harbour lines – past which no wharves could be built – usually included one or two military engineers. In the years after the Civil War, officers of the Corps of Engineers were familiar sights in American harbours and major navigable rivers. Since the 1820s, Congress had relied on the Army to maintain all waterways that could be an aid to commerce and increased economic competitiveness with European powers. If the engineer officers determined that they could materially improve the harbours and rivers under their watch, so much the better. Since the 1820s the federal legislature had funded projects ranging from canals and levee work to sea walls. The majority of the Army’s work was in dredging: the endless and unglamorous task of removing silt from where it built up in estuaries and harbour entrances. These “internal improvements” were meant to extend the reach of commodities markets as far into the continental interior as was feasible. Yet in a litigious republic, wary of centralized, and especially military, power, clear doctrine governing these improvements was paramount. As the Army reconstructed waterways and took responsibility for rivers and streams stretching further into the continent, their justifications for operation followed them. Invoking the Commerce Clause of the U.S. Constitution, the Army argued it exercised federal power in in these locations far from the federal district, no matter how backwater, in the interests of the entirety of the United States. (5)
Picture this in its 19th century reality: any river with enough depth to accommodate a paddle-wheel is clogged with traffic of all sizes. The portion of the river that is navigable is relatively small compared to the width of the water’s surface, and it changes often, week to week or even day to day. Sandbars appear and submerge. Logs by the thousands combine into impenetrable rafts. These rafts then drift downstream to smash into bridge pilings or other structures. Bridges that don’t immediately collapse under the impact of a raft hit strain under the pressure of the river bearing against the raft spread wide against the current, and fail soon afterward. A military engineer in charge of “maintenance” of this impossible system might realize that threats to the navigability of a river might hinge not only on placement of bridge pilings and the susceptibility to becoming enmeshed in a swarm of upstream detritus. He might also imagine his job could only be accomplished if he, or the institution he worked for, had some say in upstream use of the river: some mechanism of mitigating these obstacles before they appeared. Then imagine the engineer, alone, and often young and inexperienced, trying to explain hydrological theories to the local watermen, shrugging as they pick their way along the log rafts. Any sort of agency or authority in that environment was likely hard-won. (6)
1880s photograph of cottonwood snag-catchers built by the Corps of Engineers on the Mississippi River near Plum Point to catch debris drifting downstream. (Photographs and Prints Division, National Archives and Records Administration, College Park, Maryland)
The first significant attempts by the U.S. government to regulate rivers as large systems came after the Civil War, when railroad companies sought to bridge the broad watercourses of the Midwest. The Army convened boards to review bridge plans to ensure enough clearance for steamboats and see that the planned pilings would not unduly restrict navigation. (7) This assertion of authority over rivers, slowly but steadily accumulating, culminated in the landmark Rivers and Harbors Act of 1899, which prohibited any dumping into streams maintained by the Army. Though passed by Congress, legislation of this scope likely would not have been possible without the Army’s uniform and pre-existing regulation structure in place. As often with institutions, custom and power combine to form a status quo practice that may, after time, seem to have an insurmountable amount of momentum. The Corps of Engineers consolidated significant power in the 20th century; it became the locus of expertise and authority on most rivers, and often branched out into side projects, such as hydropower and irrigation. John Rapanos found himself squaring off with precisely this Corps of Engineers—likely with little idea of the historical parade of steamboats and cottonwood logs that brought federal agents to his swampland.
A Significant Nexus
In his majority opinion, issued a few months after hearing arguments, Justice Scalia took the Corps of Engineers to task for immense overreach. Justice Scalia disagreed with the Corps’ claim to have the totality of the United States as its purview, and criticized it in his description of the Corps’ hypothetical expanded territory:
270-to- 300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit—whether man-made or natural, broad or narrow, permanent or ephemeral—through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated “waters of the United States” include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory “waters of the United States” engulf entire cities and immense arid wastelands. In fact, the entire area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. (8)
Scalia’s litany of landforms and apparent contempt for the ambiguity of the phrase “waters of the United States” belie contempt for ambiguity in general and revulsion at what such untidy thinking had wrought. The watershed, an important geographical and ecological concept, is a relatively recent formulation, its emergence disrupting centuries of riparian law, and producing a legal mess. Scalia’s opinion laments clarity in the Corps’ policy: where water ends and land begins is clear, to a casual observer, and the law should reflect that clarity. Earlier jurisprudence had acknowledged the importance of wetlands to their parent rivers, but Scalia wrote that for such wetlands to be recognized, there must be a surface connection. (9) To Scalia’s mind, clarity meant visual clarity – seeing surface water passing through the reeds of “wetlands” into the flowing stream of “navigable waters” – and this was the extent of conceptual connection that was tolerable. Although Justice Kennedy’s opinion concurred with Scalia, his language reflected a more complex understanding of wetlands, by taking into account ecological considerations that might escape our vision. Kennedy’s opinion has since become the last effective barrier protecting wetlands in the United States. Kennedy interpreted U.S. environmental laws as intending to both improve the water quality of the United States and to protect it from future degradation. This entails a broad imagination of where harm might come from. The 19th century laws protected against the literal filling in of rivers with logs and silt, and provided legal authority for the Army to mitigate these threats. Twentieth century laws framed protection around the similar principle of the river’s “integrity,” as well as to acknowledge that integrity works in more than one dimension.
Reiterating the importance of the original law’s call for “the chemical, physical, and biological integrity of the Nation’s waters,” Kennedy rejected a simplistic approach. “Contrary to the plurality’s description,” he wrote, “…wetlands are not simply moist patches of earth.” Kennedy acknowledged the Corps’ already sophisticated method of determining what was or what was not a wetland, which looked closely at plant communities, soil saturation, and inundation over time in making determinations. Hydrological connections may not be immediately apparent on visual inspection, perhaps even existing through and across barriers like dikes and berms. (10) However, Kennedy felt that Corps’ reliance on the 19th century language of “navigable waters” was problematic. Even the notoriously elastic Commerce Clause had limits. (11) Instead, Kennedy proposed a wholly different concept: he argued that establishing a “significant nexus” would be necessary for determining the limits of federal jurisdiction. In its more archaic form, the term nexus simply meant link or junction, often denoting a connection between only two things. Instead of proximity to commercial waterways, Kennedy proposed an understanding of hydrological connection that could instead be a harder-to- quantify adjacent benefit, such as a marsh’s ability to absorb floods. Wetlands not immediately adjacent to rivers could certainly have a significant biological or chemical connection, one if harmed, degraded, or destroyed, would also erode the integrity of the river. Kennedy’s opinion, which became the basis on which the government would justify regulations, simply asked the Corps to establish that there was a significant nexus before claiming authority to regulate a wetland. (12)
The Tatanka Wind Farm, amidst prairie wetlands on the border between North and South Dakota. (Krista Lundgren/US Fish and Wildlife Service)
The significant nexus test, as it came to be known, connoted commensurately significant expertise to evaluate and administer. The test also implied that federal regulators like the Corps of Engineers were the undisputed leaders in technical understanding of the workings of wetlands, and the best-suited arbiters of what is a significant biological or chemical connection between bodies of water in the landscape. In November 2013, the Environmental Protection Agency convened a “Geographically Isolated Wetlands Research Workshop” in Georgia, inviting a number of wetlands scientists to discuss how wetlands fit into a larger hydrological landscape. Concluding that “wetlands occur along a continuum of connectivity, with a great deal of spatial heterogeneity and temporal variability” making generalizations difficult, the assembled scientists nonetheless advocated for a focus on developing knowledge about the roles that upland wetlands could, and likely do, play in the integrity of larger downstream waters. They asked readers to envision wetlands as nodes in a network, with a variety of possible kinds of connections. Wetlands perform the necessary functions of water storage, slow the exchange of surface water and ground water, and enhance the recharge of deep groundwater. Human alterations in this network of course alter various functions, and impacts ripple through the larger system. Of course, the scientists were sure to include that “[w]hether this constitutes a significant nexus is a policy decision that we do not purport to advance here…” (13)
Hard science may be the currency with which such cases are won. Yet one doesn’t need a panel of scientists to understand that vast amounts of water move through the land and that marshy or swampy areas, full of biota ranging in scale from algae to geese, are indeed enmeshed in beneficial connections to other waters in many ways. But what of the contortions of law, history, and thought to reach this conclusion, so swiftly arrived at through intuition?
The government released its final rule in June 2015, nearly a decade after John Rapanos had his day in court. The resulting definition was inevitably disappointing. According to the 75-page text of the new rule, being within “100 feet of the ordinary high water mark,” “in whole or in part,” is enough to make a wetland significant to the United States, with broader definitions applicable in the 100-year floodplain. (14) The conservative press was, of course, quick to attack, summoning a good deal of slippery-slope fretting and warning of the “Washington water police,” soon to make an appearance at your local “prairie pothole.” (15) In reality, this sort of vigorous enforcement is unlikely. Before the new rule was issued, pollution rates rose dramatically, as the government had difficulty enforcing the law under the absence of a clear rule. In the years between the establishment of the significant nexus standard and the definitive rule in 2015, a number of companies took advantage of the fact that government agents had to prove a significant nexus in each pollution case. Enforcement became logistically impossible. Companies took the opportunity to declare that these contested environmental laws no longer applied to their operations, and commenced dumping into rivers, a lapse that top federal environmental administrators were highly criticized for. (16) For all of its high-mindedness, the significant nexus concept resulted in a simple, graphic, and geographically generic border around waterways after all.
The combination of all of these historical contingencies has produced something that is good for wetlands: the Army’s mechanisms of power, built into the landscape over decades, have allowed the more benign Environmental Protection Agency to assert protection over essential resources in a broad scope. This is the best sort of piggybacking, at least in terms of the aims of environmentalists. But the tortured pathways of logic that gets us to this point remain troubling. First is the collusion of the forces of history to put environmentalists on the same side as engineers. Water could be easily conceived of as a universal connector, but broad imagining of infinite conceptual links exposes wetlands to an engineer’s mentality. This effectively makes environmentalism dependent on the language of systems analysis and efficiency. Technical description is never neutral, and though it may work in the interests of wetlands for now, there is no guarantee that a technocratic state will continue to be a faithful custodian. The Corps of Engineers, at first acting on public fears of malaria, drained and reclaimed nearly every wetland it came across until legislation in the early 1990s forced a “no-net loss” policy across the lower United States, requiring the Corps reconstruct any wetlands that would be removed in any of their projects. The winds could easily shift in the other direction. As recently as January, 2016, a month before this writing, President Barack Obama vetoed a joint congressional resolution nullifying the new rule, saying that the definition of protected wetlands would “have no force or effect.” (17)
Scalia’s worst-case scenario was a landscape preservation scheme that knew no borders and met no limits. Yet his continental-scale description may have given form to an ambition that had previously lacked definition. And while environmentalists may savour the victory of significant nexus, a concept flexible as the Commerce Clause, this dispute is not over. Scalia knew that to cast off common-sense geographical definitions-- obliterating a shared knowledge of borders-- would mean that we would continue to lurch from ontological crisis to ontological crisis. But “significant nexus” is a scientific term, its limits to be defined by scientific consensus and wetlands will now increasingly be described by enumeration of technical components. It’s not hard to imagine a future where to have any influence over the fate of wetlands, one must have a specialized university degree. These recent disputes pushed wetlands further into the category of engineered system, therefore subject to criteria by which those systems are judged, and exclusive of others.
Rivers and wetlands are complex and ambiguous spaces. Because they defy consistent description, and contain broad, non-visual complexity, imposition of regimes like the Corps’ new 100’ line don’t sit well. Engineers spend their careers seeking out and eradicating ambiguity: it’s their job and there’s nothing morally wrong with it. Yet pervasive ambiguity and lack of precision was exactly what protected the wetlands in the first place. Historically, quantification of nature has been a brief precursor to exploitation, and one may be rightly wary of the end-game of this latest creeping scientism in the description of landscapes. It too would be folly to embrace the engineer as saviour and expect redemption of nature by technical means—too often proven an expensive and embarrassing path. Ultimately, this border dispute is about words and choice of words. Scalia’s frustration stemmed from a lack of terms—and conceptual structures contained in language—to adequately grasp the complexity of the situation. Reliance on the terms of science and engineering has stymied our ability to construct meaningful—and imprecise—ways of communicating about our landscapes. “Nature,” perhaps the most ambiguous word in the English language, has and continues to serve well, provoking as much thought as it has succeeded in communicating concept. Our energies might best be spent interrogating terms like “significant nexus,” though a thoughtful humanist inquiry might just generate and clouds of ambiguity. So much the better, as any definitive resolution to where the waters end will always be deeply flawed. A healthy conceptual plurality might just be the only thing that staves off total, and fatal quantification. Wetlands are muddy by nature. They and other landscapes need the attention of those who aren’t engineers, and require description by something other than the demarcating line.
Endnotes
(1) Linda Greenhouse, “Supreme Court Takes up Two Cases Challenging Powers of U.S. Regulators to Protect Wetlands,” New York Times, October 12, 2005.
(2) M. Reed Hooper and Todd F. Gaziano, “Watch Out for That Puddle, Soon It Could Be Federally Regulated,” Wall Street Journal, December 8, 2014.
(3) Greenhouse, “Two Cases.”
(4) Felicity Barringer, “Justices Debate Federal Role in Regulating Water Pollution,” New York Times, February 22, 2006.
(5) Those interested in further reading should see: Todd A Shallat, Structures in the Stream: Water, Science, and the Rise of the U.S. Army Corps of Engineers, (Austin: University of Texas Press, 1994); Martin Reuss, “Andrew A. Humphreys and the Development of Hydraulic Engineering: Politics and Technology in the Army Corps of Engineers, 1850-1950,” Technology and Culture 26, no. 1 (1985): 1–33; Arthur Maass, Muddy Waters: The Army Engineers and the Nation’s Rivers (Cambridge, Mass.: Harvard University Press, 1951).
(6) For an excellent overview of industrialization and the American legal system’s adaptations of early riparian law to the demands of a riverine environment much reshaped by industrial use, see Theodore Steinberg, Nature Incorporated: Industrialization and the Waters of New England (Cambridge: Cambridge University Press, 1991).
(7) For an example of interpretation of legislation that the Corps of Engineers takes its guidance from, see U.S. Congress, House, Annual Report of the Chief of Engineers of the United States Army to the Secretary of War for the Year 1885. 49th Cong., 1 st sess., 1885, Part 1, Ex. Doc. 1, pt. 2, vol. II, 54. The statement of intentions and reference to the law they are following is typical of these reports, as if the engineers recognize the tortured pathway one needs to follow to establish the legal basis of their authority.
(8) Rapanos v. United States, 547 U.S. 715 (2006). Antonin Scalia died during the composition of this article, and I found myself writing on him during a swirl of reassessment of his jurisprudence and effect on the legal status of so many minority groups in the United States. I feel no need to join the other, more well-informed voices assessing his legacy, though I do wish to agree with others when they say that, indeed, if anything, he was a vivid writer.
(9) Solid Waste Agency of North Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC).
(10) See Part A, Kennedy’s concurrence, Rapanos v. United States 547 U.S. 715 (2006).
(11) I wish to acknowledge the Washington Post columnist George Will for this formulation.
(12) See “Rapanos” and “Carabell” section of Kennedy’s opinion, Rapanos v. United States 547U.S. 715 (2006).
(13) M. C. Rains et al., “Geographically Isolated Wetlands Are Part of the Hydrological Landscape,” Hydrological Processes 30 (2016): 153, 157.
(14) Department of Defense and Environmental Protection Agency, “Clean Water Rule: Defnition of ‘Waters of the United States,” 80 Federal Register 124 (June 29, 2015), p. 37058.
(15) “EPA’s Amphibious Attack,” Wall Street Journal, May 28, 2015.
(16) Charles Duhigg and Janet Roberts, “Toxic Waters: Rulings Restrict Clean Water Act, Hampering E.P.A.,” New York Times, March 1, 2010.
(17) Providing for Congressional Disapproval of a Rule Submitted by the Corps of Engineers and the Environmental Protection Agency, S.J. Res. 22, 114th Cong., 2nd sess., Congressional Record 162, no. 12, daily ed. (January 21, 2016): S147.
John Dean Davis is a Tyler Fellow at the Dumbarton Oaks Research Library and Collection and a Ph.D. candidate at Harvard University. He is currently working on his dissertation, an environmental and design history of the U.S. Army Corps of Engineers during the Reconstruction Era.
